IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOHN D. COCKSHUTT, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-532 

 Magistrate Judge King 

STATE OF OHIO DEPARTMENT OF 

REHABILITATION & CORRECTION, 

et al., 

Defendants. 

 

OPINION AND ORDER 

I. Background 

Plaintiff John D. Cockshutt, a state prisoner, filed this action 

on June 18, 2012, naming as defendants Trooper Schmutz and twelve 

employees of the Ohio Department of Rehabilitation and Correction 

(“ODRC”), the Madison Correctional Institution (“MaCI”), and the 

Lebanon Correctional Institution (“LoCI”), and complaining that his 

security level had been increased because of a false conduct charge. 

Plaintiff alleges that his rights to due process and to be free from 

cruel and unusual punishment were thereby violated. The Court has 

previously set forth the factual allegations of this case: 

The [Amended Complaint, Doc. No. 40,] alleges that, while 

incarcerated at MaCI, plaintiff was investigated for his 

alleged involvement in a plot to smuggle a gun into MaCI so 

that he could kidnap a nurse, escape from MaCI, and then 

murder the nurse. [Id. at] p. 10. During this 

investigation, defendant Schmutz allegedly interrogated 

plaintiff without identifying himself as an Ohio State 

Trooper and without reading plaintiff his Miranda rights. 

Id. at pp. 9-11. The [Amended Complaint] also alleges that 

defendant Schmutz, and nearly every other defendant, 

falsely informed plaintiff that Ronald May was the 

confidential informant who provided information about the 

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alleged plot. Id. These actions, plaintiff alleges, 

resulted in a “false conduct report” that has been included 

in plaintiff’s institutional record. Id. at pp. 10-11. 

As a result of the alleged false conduct report and other 

allegedly false evidence, plaintiff was found guilty at a 

Rules Infraction Board (“RIB”) hearing of attempting to 

escape and attempting to convey firearms into the 

institution. Id. at pp. 3-4, 8, 11-12. Plaintiff was also 

“placed in isolation for six months” and transferred to a 

higher security prison, which has caused plaintiff “to have 

a mental breakdown” and has caused “serious physical 

deterioration of” plaintiff’s health. Id. at pp. 11-12. 

The [Amended Complaint] further alleges that plaintiff’s 

chance of release on parole has been “jeopardized” because 

“the inclusion of the false conduct report in [plaintiff’s] 

institutional record will likely cause his [p]arole to be 

denied.” Id. at p. 11. According to the [Amended 

Complaint], had defendant Schmutz identified himself as an 

Ohio State Trooper during the investigation, plaintiff 

would have called defendant Schmutz as a witness at the RIB 

hearing and he would have likely not been found guilty. 

Opinion and Order, Doc. No. 86, pp. 2-3 (footnotes omitted). 

On October 24, 2012, defendant Schmutz filed a motion to dismiss 

for failure to state a claim, Doc. No. 31. Plaintiff thereafter filed 

a motion to amend the complaint, Doc. No. 40. On June 3, 2013, the 

Court granted plaintiff leave to amend, but denied leave as to 

defendant Schmutz on the basis of futility and granted defendant 

Schmutz’s motion to dismiss. Opinion and Order, Doc. No. 86. This 

matter is now before the Court, with the consent of the parties 

pursuant to 28 U.S.C. § 636(c), for consideration of plaintiff’s 

motion to reconsider the Court’s June 3, 2013 Opinion and Order, 

Plaintiff’s Objections to the Magistrate’s Orders (“Motion to 

Reconsider”), Doc. No. 88. This matter is also before the Court for 

consideration of Plaintiff’s Motion to Amend the Scheduling Order, 

Doc. No. 82, Plaintiff’s Motion to Compel, Doc. No. 83, Plaintiff’s 

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Motion to Supplement the Record, Doc. No. 87, and Defendants’ Motion 

to Amend the Scheduling Order, Doc. No. 93. Each motion will be 

addressed in turn. 

II. Discussion 

A. Motion to Reconsider 

Plaintiff’s Motion to Reconsider asks the Court, pursuant to Fed. 

R. Civ. P. 60(b), to reconsider its June 3, 2013 Opinion and Order, 

Doc. No. 86, which denied leave to amend the complaint as to defendant 

Schmutz and granted defendant Schmutz’s motion to dismiss. Plaintiff 

argues that the Court failed to consider the cumulative effect of 

defendant Schmutz’s actions and that reconsideration is necessary in 

light of the fact that plaintiff was denied parole on May 28, 2013 by 

the Ohio Adult Parole Authority. Motion to Reconsider, p. 2. 

According to plaintiff, “Due Process is clearly implicated by” 

defendant Schmutz’s actions and, had evidence of plaintiff’s parole 

denial been available, the Court’s June 3, 2013 Opinion and Order

“would have been different.” Motion to Reconsider, p. 2. 

As an initial matter, “by its terms, Rule 60(b) applies only to 

final judgments.” Mallory v. Eyrich, 922 F.2d 1273, 1277 (6th Cir. 

1991). However, courts “‘have inherent power to reconsider 

interlocutory orders and reopen any part of a case before entry of a 

final judgment.’” In re Saffady, 524 F.3d 799, 803 (6th Cir. 2008) 

(quoting Mallory, 922 F.2d at 1282). See also Marconi Wireless Tel. 

Co. v. United States, 320 U.S. 1 (1943) (“District courts have 

inherent power to reconsider interlocutory orders and reopen any part 

of a case before entry of a final judgment”). A court may properly 

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reconsider an interlocutory order “‘whe[re] there is (1) an 

intervening change of controlling law; (2) new evidence available; or 

(3) a need to correct a clear error or prevent manifest injustice.’” 

Louisville/Jefferson Cnty. Metro Gov’t v. Hotels.Com, L.P., 590 F.3d 

381, 389 (6th Cir. 2009) (quoting Rodriguez v. Tenn. Laborers Health & 

Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004)). A motion for 

reconsideration “should not be used to re-litigate issues previously 

considered.” Am. Marietta Corp. v. Essroc Cement Corp., 59 F. App’x 

668, 671 (6th Cir. 2003). 

 Plaintiff asks the Court in a related motion to supplement the 

record with the May 28, 2013 decision of the Ohio Adult Parole 

Authority denying parole to plaintiff. Motion to Supplement the 

Record, Doc. No. 87. Plaintiff represents that evidence of this 

denial was not available until approximately the time that the Court’s 

June 3, 2013 Opinion and Order was issued and that the evidence is 

material to that Opinion and Order. See Motion to Reconsider, p. 2. 

The Court GRANTS plaintiff’s Motion to Supplement the Record as 

unopposed. See S.D. Ohio Civ. R. 7.2(a)(2). The Court concludes, 

however, that evidence of the May 28, 2013 decision of the Ohio Adult 

Parole Authority denying plaintiff parole is not material to the 

Court’s June 3, 2013 Opinion and Order. 

 Plaintiff’s due process claims against defendant Schmutz are 

premised on (1) defendant Schmutz’s alleged failure to identify 

himself as a state trooper and to provide Miranda warnings prior to 

interrogating plaintiff at MaCI in June 2010 about the alleged plot to 

convey a gun into MaCI and (2) the jeopardy to plaintiff’s chances of 

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parole by the inclusion of an allegedly false conduct report in 

plaintiff’s institutional record. For the reasons articulated in the 

June 3, 2013 Opinion and Order, the Amended Complaint “fails to state 

a claim against defendant Schmutz on either theory.” Opinion and 

Order, Doc. No. 86, pp. 6-9. As discussed in that order, plaintiff 

does not allege that defendant Schmutz was involved in filing the 

alleged false conduct charge, plaintiff cannot state a cause of action 

under § 1983 based solely on the failure to provide a Miranda warning, 

see McLoughlin v. Maxwell, 705 F.2d 456, 1982 U.S. App. LEXIS 11837, 

at *2-3 (6th Cir. Aug. 3, 1982), and neither the United States 

Constitution, see Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 

442 U.S. 1, 7 (1979); Swihart v. Wilkinson, 209 F. App’x 456, 458 (6th 

Cir. 2006), nor the State of Ohio have created a liberty interest in 

parole eligibility, Michael v. Ghee, 498 F.3d 372, 378 (6th Cir. 2007) 

(quoting Swihart, 209 F. App'x at 458-59). Plaintiff’s arguments to 

the contrary notwithstanding, this conclusion is not affected by the 

“cumulative effect” of plaintiff’s allegations, see Motion to 

Reconsider, p. 2, nor is it significant – from a legal perspective - 

that plaintiff was actually denied parole. Accordingly, plaintiff’s 

Motion for Reconsideration is DENIED. 

B. Scheduling Order 

The Court’s Scheduling Order, Doc. No. 44, required that 

discovery be completed by May 31, 2013, and that dispositive motions 

be filed no later than June 30, 2013. After some confusion among the 

parties as to the identity of the proper defendants in this action,1

 

1

 The parties debated whether it was Gary Mohr, the current Director of ODRC, 

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defendant Ernie Moore was served with process on May 13, 2013. Doc. 

No. 80. This defendant filed an Answer on June 27, 2013. Doc. No. 

92. 

On May 28, 2013, plaintiff filed Plaintiff’s Motion to Amend the 

Scheduling Order, asking the Court to extend the May 31, 2013 

discovery completion date for 60 days because service of process had 

not yet been perfected on defendant Ernie Moore and because defendants 

had thus far refused to provide discovery. Defendants (excluding 

defendant Schmutz) filed a response to that motion, Defendants’ 

Response, Doc. No. 91, and also filed Defendants’ Motion to Amend the 

Scheduling Order, Doc. No. 93. Defendants’ Response and motion ask 

the Court to extend the discovery deadline, but to limit additional 

discovery to only those requests propounded between plaintiff and 

defendant Ernie Moore. Defendants also ask to extend the deadline for 

the filing of dispositive motions to thirty (30) days after the close 

of discovery. Plaintiff has filed a reply, Doc. No. 97, insisting 

that an extension of the discovery deadline is necessary because 

service had only recently been perfected on defendant Ernie Moore. 

The Court agrees that an extension of the current case schedule 

is necessary to permit discovery between plaintiff and defendant Ernie 

Moore. Plaintiff has not, however, articulated a persuasive argument 

as to why additional discovery is necessary for the remaining 

defendants. Plaintiff argues that additional time for discovery is 

necessary because defendants have not responded to certain discovery 

 or Ernie Moore, the current Warden of LoCI, who was a proper defendant in 

this action. See Opinion and Order, Doc. No. 70. 

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requests. Those requests are, however, the subject of Plaintiff’s 

Motion to Compel, which is discussed infra. Furthermore, the 

existence of a discovery dispute does not, by itself, justify an 

extension of the discovery deadline because, as is the case here, the 

dispute can be addressed in a Rule 37 motion to compel. Accordingly, 

Plaintiff’s Motion to Amend the Scheduling Order, Doc. No. 82, is 

GRANTED in part and DENIED in part. Defendants’ Motion to Amend the 

Scheduling Order, Doc. No. 93, is likewise GRANTED in part and DENIED

in part. The Scheduling Order, Doc. No. 44, is MODIFIED as follows: 

Discovery between plaintiff and defendant Ernie Moore may proceed 

and must be completed no later than September 20, 2013. The parties 

are ADVISED that this discovery completion date requires that 

discovery requests be made sufficiently in advance to permit response 

by that date. 

Dispositive motions may be filed no later than November 11, 2013. 

C. Motion to Compel 

Plaintiff’s Motion to Compel seeks to compel the production of 

documents from defendants Ackley, Johnson, and Schmutz. Plaintiff 

seeks, inter alia, the production of documents relating to the 

investigation and interrogation of plaintiff in MaCI in May and June 

2010 and the charges underlying plaintiff’s RIB proceeding. See 

Plaintiff’s Motion to Compel, pp. 1-2. Plaintiff specifically seeks 

information about the “prisoner witnesses and confidential 

informants[]” who provided information to defendants, id., arguing 

that those documents will substantiate his claim that the charge 

underlying his RIB proceeding was false and “that the entire plot was 

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fabricated by the Defendants.” Id. at p. 8. 

 1. Standard 

Rule 37 of the Federal Rules of Civil Procedure authorizes a 

motion to compel discovery when a party fails to provide a proper 

response to requests for production of documents under Rule 34. Fed. 

R. Civ. Pro. 37(a)(3)(B). “The proponent of a motion to compel 

discovery bears the initial burden of proving that the information 

sought is relevant.” Martin v. Select Portfolio Serving Holding 

Corp., No. 1:05–cv–273, 2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio 

Sept. 25, 2006) (citing Alexander v. Fed. Bureau of Investigation, 186 

F.R.D. 154, 159 (D.D.C. 1999)). 

Rule 26(b) provides that “[p]arties may obtain discovery 

regarding any nonprivileged matter that is relevant to any party’s 

claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevance for discovery 

purposes is extremely broad. Lewis v. ACB Bus. Servs., Inc., 135 

F.3d 389, 402 (6th Cir. 1998). “The scope of examination permitted 

under Rule 26(b) is broader than that permitted at trial. The test is 

whether the line of interrogation is reasonably calculated to lead to 

the discovery of admissible evidence.” Mellon v. Cooper-Jarrett, 

Inc., 424 F.2d 499, 500-01 (6th Cir. 1970). However, “district courts 

have discretion to limit the scope of discovery where the information 

sought is overly broad or would prove unduly burdensome to produce.” 

Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 

(6th Cir. 2007) (citing Fed. R. Civ. P. 26(b)(2)). See also Lewis, 

135 F.3d at 402 (determining the proper scope of discovery falls 

within the broad discretion of the trial court). 

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Finally, the party moving to compel discovery must certify that 

he “has in good faith conferred or attempted to confer with the person 

or party failing to make disclosure or discovery in an effort to 

obtain it without court action.” Fed. R. Civ. P. 37(a)(1). See also

S.D. Ohio Civ. R. 37.2. Plaintiff’s Motion to Compel does not 

technically contain a certification that plaintiff has in good faith 

conferred or attempted to confer with defendants in an effort to 

obtain the disputed discovery without court action. However, it is 

apparent that the parties have reached impasse in their attempts to 

resolve their dispute. 

 2. Discussion 

 As discussed supra, plaintiff seeks to compel the production of 

documents related to prisoner witnesses and confidential informants 

who provided information during the investigation of and interrogation 

relating to plaintiff’s RIB proceeding. Defendants argue that such 

documents “constitute[] a Confidential Law Enforcement Investigatory 

Record pursuant to [O.R.C.] § 149.41(A)(1)(h)” because their 

disclosure would (1) “create a high probability of [disclosing] the 

identity of an information source to whom confidentiality has been 

reasonably promised,” (2) “create a high probability of disclosure of 

specific confidential investigatory techniques or procedure or 

specific investigatory work product,” and/or (3) “create a high 

probability that information disclosed would endanger the life of a 

confidential information source.” Defendants’ Response, pp. 7-9. See 

also Defendant Schmutz’s Response, Doc. No. 84, p. 2 (also arguing 

that a federal common law privilege applies and that, in any event, 

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defendant Schmutz does not possess any of the documents requested). 

Defendants’ arguments to the contrary notwithstanding, O.R.C. § 

149.41(A)(1)(h) does not protect relevant documents from discovery 

requests in a civil action such as this. As the Ohio Supreme Court 

recognized in Henneman v. City of Toledo, 520 N.E.2d 207 (Ohio 1988), 

the Ohio Public Records Act, O.R.C. § 149.43, et seq., does not create 

an “absolute privilege” from discovery and “does not protect records 

from a proper discovery request in the course of litigation, if such 

records are otherwise discoverable.” Henneman, 520 N.E.2d at 210-11. 

In fact, classifying a document as a Confidential Law Enforcement 

Investigatory Record pursuant to O.R.C. § 149.41(A)(1)(h) serves only 

“to exempt the records . . . from the requirement of availability to 

the general public on request.” See id. at 211. In short, 

defendants’ argument that the documents requested by plaintiff are 

privileged under the Confidential Law Enforcement Investigatory Record 

exception to the Ohio Public Records Act, O.R.C. § 149.41(A)(1)(h), is 

without merit. See Rose v. State Farm Fire & Cas. Co., No. 2:10-CV874, 2011 WL 6151585, at *1-2 (S.D. Ohio Dec. 9, 2011); Mattox v. 

Vill. of Geneva on the Lake, No. 1:05–CV–2325, 2006 WL 3762096, at *1–

2 (N.D. Ohio Dec. 20, 2006). 

 Nevertheless, the Court recognizes that the documents requested 

by plaintiff highly sensitive and that their disclosure should not be 

lightly required. Defendants have not, in the Court’s view, 

adequately addressed the pertinent issues associated with plaintiff’s 

request for the production of these documents, i.e., whether the 

documents are privileged on some other basis and whether the Amended 

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Complaint states a colorable claim for relief. As to the latter, the 

Amended Complaint alleges that every defendant participated in the 

“fabrication of [the alleged] false Conduct report” and the finding of 

guilt at the RIB hearing. Amended Complaint, p. 11. As noted supra, 

plaintiff alleges that the drafting and filing of the allegedly false 

conduct report and the inclusion of his RIB conviction in his 

institutional record violates his right to due process because his 

liberty interest in release on parole has been thereby jeopardized. 

Id. at pp. 1-9, 11. Plaintiff also alleges that the false allegations 

of misconduct, being “placed in isolation for six months,” and being 

transferred to LoCI “constitute cruel and unusual punishment.” Id. at 

p. 12. However, as discussed in the Court’s June 3, 2013 Opinion and 

Order, Doc. No. 86, and supra, plaintiff has no liberty interest in 

parole. Similarly, inmates have no constitutional right to be 

incarcerated in a particular institution, Olim v. Wakinekona, 461 U.S. 

238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Crosky 

v. Ohio Dept. of Rehab. & Corr., No. 2:09-cv-400, 2012 WL 748408, at 

*9 (S.D. Ohio Mar. 8, 2012), “or to enjoy a particular security 

classification.” Crosky, 2012 WL 748408 at *9 (citing Montanye v. 

Haymes, 427 U.S. 236, 242 (1976)). 

 Out of an abundance of caution and a concern that the issues 

presented by Plaintiff’s Motion to Compel have not been adequately 

explored, the Court concludes that additional briefing is necessary 

prior to resolution of that motion. The Court will therefore reserve 

ruling on Plaintiff’s Motion to Compel at this time. 

WHEREFORE, based on the foregoing, Plaintiff’s Motion to 

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Supplement the Record, Doc. No. 87, is GRANTED. 

Plaintiff’s Motion to Reconsider, Doc. No. 88, is DENIED. 

Plaintiff’s Motion to Amend the Scheduling Order, Doc. No. 82, is 

GRANTED in part and DENIED in part. 

Defendants’ Motion to Amend the Scheduling Order, Doc. No. 93, is 

GRANTED in part and DENIED in part. 

The Scheduling Order, Doc. No. 44, is MODIFIED as follows: 

Discovery between plaintiff and defendant Ernie Moore may proceed 

and must be completed no later than September 20, 2013. The parties 

are advised that the discovery completion date requires that discovery 

requests be made sufficiently in advance to permit response by that 

date. 

Dispositive motions may be filed no later than November 11, 2013. 

Plaintiff’s Motion to Compel, Doc. No. 83, remains pending. 

The parties are DIRECTED to address, within twenty-one (21) days 

of this order, the Court’s concerns regarding whether the documents 

that plaintiff seeks are privileged and whether the Amended Complaint 

states a colorable claim to relief against any defendant. Any motion 

filed pursuant to this order shall be briefed within rule. 

August 9, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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